No Free Speech (Or Silence) In The NFL

The NFL recently fined Seattle Seahawks' running back Marshawn Lynch $100,000 for not talking to the media. (Photo: USA Today)

Aside from death and taxes, there is one universal, or at least American, truth we must all accept — Roger Goodell can do whatever he wants.

The NFL Commissioner has free reign to do as he pleases, including the complete trampling of civil rights, largely because the NFL Players Association is essentially worthless.

The media has covered the plights of Adrian Peterson and Ray Rice ad nauseam. But perhaps the greatest example of how the NFLPA has failed its members arises out of Marshawn Lynch’s lack of free speech and his recent $100,000 fine for not giving post-game interviews.

Look, Lynch is no choir boy. He was suspended in 2009 following a misdemeanor weapons charge and in 2012 he pled a DUI down to reckless driving. This past offseason he was investigated for an alleged assault. However, Lynch is a likeable character who dominates the running back position and enjoys Skittles on the sideline. He also appeared in the best Mayne Event segment of all time. Ambience or décor, Marshawn?

The NFL should want someone like Lynch to play hard, keep his head down, and stay out of trouble. And that is exactly what Lynch has tried to do. In the NFL, though, players do not have the right to remain silent. Since Lynch refused to speak to the media following the Seahawks’ loss to the Chiefs on November 16, Goodell levied a $100,000 fine on Lynch.

Let that sink in.

Le’Veon Bell openly smoked weed before a team flight and has not paid a dime in fines. Lynch kept his mouth shut after a game and now has to pay $100,000, which is perfectly allowable under the vague and open-ended terms of the CBA.

Article 51, Section 4 of the CBA states that “The NFLPA will use its best efforts to ensure that the players cooperate with the Clubs and the news media (including television, radio, internet, print) in reasonable promotional activities on behalf of the Clubs and the NFL.”

Does anyone actually know what that means? What NFLPA lawyer agreed to a clause with the phrase “best efforts” and “reasonable promotional activities”? First year law students are taught in Contracts class to eliminate vague phrases such as these. Lynch carries the ball 30 times to help his team win. Is that not a reasonable promotion of the NFL?

So Lynch gets fined if he keeps silent. But what about if he speaks openly? Well, he can’t do that either because the CBA allows Goodell to punish players that criticize the shield.

Article 51, Section 6 provides that “The NFLPA and the Management Council agree that each will use reasonable efforts to curtail public comments by Club personnel or players which express criticism of any club, its coach, or its operation and policy, or which tend to cast discredit upon a Club, a player, or any other person involved in the operation of a Club, the NFL, the Management Council, or the NFLPA.”

Again, what does this mean? This is why people hate lawyers. There is no definition of “reasonable efforts,” “criticism,” or “tend to cast discredit.” Without expressly defining these words and phrases, the NFLPA left players open to punishments for saying almost anything Roger Goodell does not like.

Unfortunately for athletes, there is no First Amendment in professional sports leagues. The First Amendment protects free speech, but only against actions by federal, state and local government officials and agencies.

As Media Law expert Eric Robinson explained to me, by its own language, the First Amendment only applies to Congress (“Congress shall make no law…”), which also includes all the other branches and agencies of the federal government. The Supreme Court has extended this to state and local governments, so that restrictions on speech by all levels of government must pass muster under the First Amendment. Courts have also extended these requirements to private entities (corporations) that work in concert with or on behalf of the government, such as government contractors.

But private corporations, including non-profits that guzzle tax dollars such as the NFL, can and do impose restrictions on speech. As long as these restrictions are not racially discriminatory or otherwise illegal, then professional sports leagues can restrict or force speech to the limits allowed by their respective collective bargaining agreements. In the NFL’s case, the NFLPA has granted the league nearly unlimited power in controlling players’ speech.

Since this outrageous fine came down, Lynch has appealed and provided one of the most memorable post-game interviews in the history of the NFL. This Sunday, Lynch answered nearly twenty questions with a “yeah” or “maybe” while wearing an Elmer Fudd hat. It is pure gold. Then his teammates, Richard Sherman and Doug Baldwin doubled down on mocking the NFL for Lynch’s ridiculous fine in a hilarious skit that definitely made Goodell’s blood boil.

Who can really blame Lynch for not wanting to speak to the media? He shares a locker room with Richard Sherman. Don’t think for a second that Lynch is not aware of how words can be twisted and used against players. If he is too critical then he gets fined. If he is too loud or brash, then he is arrogant and angry.

Imagine if Peyton Manning refused to speak to the media after the game. I’ll bet the house that ESPN commentators would drool all over Bristol about how focused, determined, and passionate he is because he could not be bothered to hold a press conference. Marshawn, though? Oh, he must be a jerk or immature.

Seriously, Ed Sherman wrote an article chastising Lynch for disrespecting the media and having the maturity level of a 4-year-old. He then went on to blabber about George Halas’ ghost and promoting the game.

Anyone that is offended by Lynch shunning the press is hanging on to the outdated notion that traditional news media actually matters. Players can now reach fans via Twitter, personal blogs, or that thing Derek Jeter launched. They do not need a newspaper reporter to spread their message.

In fact, if all players stopped talking to the media tomorrow, the Super Bowl would still be the highest rated sporting event each year and the NFL would still make seemingly endless amounts of money.

And do you know why? Because the NFL CBA guarantees that players will talk and say nothing at the same time. When players do talk, they will only spew white toast sound bites about taking it day by day, one play at a time, while getting back to true Pittsburgh/Seattle/Arizona/Poughkeepsie style football.

If a player dares to step outside of that script, they better break out the check book, because neither speech nor silence is free in today’s NFL.